The New India Assurance Co. Ltd vs Ramanlal Jagjivan Gokal And Ors
2024 Latest Caselaw 1385 Bom

Citation : 2024 Latest Caselaw 1385 Bom
Judgement Date : 19 January, 2024

Bombay High Court

The New India Assurance Co. Ltd vs Ramanlal Jagjivan Gokal And Ors on 19 January, 2024

KVM

                                           1/6
                                                            8 - WP 12994 OF 2018.doc


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION
                      WRIT PETITION NO. 12994 OF 2018

The New India Assurance Co.Ltd.                         ..... Petitioner

          VERSUS

Ramanlal Jagjivan Gokal & Ors.                          ..... Respondents

Mr.V.Y.Sanglikar a/w. Ms.Vaishali Wagale for the Petitioner.

Ms.Ranjana Parikh for the Respondent Nos. 2 to 5.

                                         CORAM: RAJESH S. PATIL, J.

                                         DATE    : 19 JANUARY, 2024

P.C. :-

The petitioner herein is the original defendant, against

whom T.E. & R suit was filed.

2. By an judgment and order dated 19 October, 2004, the

petitioner/defendant was directed to evict the suit premises. On

22 December, 2005, the petitioner handed over the vacant

possession of the suit premises to the respondent. The

application of the landlord for mesne profit was thereafter heard

and decided. The Trial Court by its judgment and order dated 11

January, 2010 determined the mesne profit at the rate of Rs.90/-

KVM

8 - WP 12994 OF 2018.doc

per sq.ft. per month to be payable from 1 July, 2000 to 22

December, 2005.

3. The petitioner/defendant being dissatisfied with the

quantum granted by the Trial Court as regards the mesne profit,

filed an appeal before the Appellate Bench of the Court of Small

Causes being Misc. Appeal No. 107 of 2011. Immediately, after

filing of the appeal, the petitioner/defendant in order to secure

the stay to the impugned judgment and decree of mesne profit,

deposited a sum of Rs.2,66,51,108/-, so also furnished bank

guarantee for a sum of Rs.88,71,703/-.

4. The Appellate Court thereafter heard the appeal filed by

the petitioner and by its judgment and order dated 15 June, 2013

dismissed the appeal filed by the petitioner. The petitioner

thereafter challenged the impugned order passed by the Trial

Court and the Appeal Court, directing to pay mesne profit, in this

Court by way of Writ Petition No. 7446 of 2013.

KVM

8 - WP 12994 OF 2018.doc

5. By an order dated 30 June, 2015, this Court disposed of

Writ Petition No. 7446 of 2013 and reduced the mesne profit,

thereby directing the petitioner to pay mesne profit at the rate of

Rs.80/- per sq.ft./per month. For ease of reference, the said order

dated 30 June, 2015 is reproduced hereinbelow :-

1] This petition challenges order dated 15 June 2013 made by the appellate bench of the Small Causes Court determining mesne profits at the rate of Rs.90/- per sq. ft. per month. The expert who was examined on behalf of the respondent - landlords had determined mesne profits at the rate of Rs.98.74 per sq. ft. per month. On the other hand, the expert appointed by the petitioner determined the mesne profits at the rate of Rs.77.60 per sq. ft. per month as being fair and reasonable.

2] The appeal Court, has virtually taken an average of the two and determined the rate at Rs.90/- per sq. ft. per month.

3] There is a material on record which indicates that the instances relied upon by the respondent - landlords pertain to the premises which are within the radius of about two kilometers from the suit premises. The petitioner's expert, on the other hand has made reference to Ready Reckoner. Mr. Sanglikar, on basis of instructions from the petitioner has made a statement that the petitioner would be agreeable to pay mesne profits at the rate of Rs.80/- per sq. ft. per month, even though, the expert engaged by the petitioner had

KVM

8 - WP 12994 OF 2018.doc

suggested the rate of Rs.77.60 per sq. ft. per month. In determining mesne profits, market rate as well as the reasonable losses which the landlord may have sustained due to the deprivation of use of the suit premises are required to be taken into consideration. Some allowance also has to be made to the circumstance that the instances referred to by the respondent - landlords have some distinguishing features and therefore, it is not possible to accept the rate thereof in its entirety. Therefore, upon cumulative consideration of all such relevant factors, it would be appropriate if the rate is determined at Rs.80/- per sq. ft., per month, which is incidentally the rate now agreed by the petitioner.

4] Accordingly, the impugned orders are interfered to the limited extent and the rate of Rs.90/- per sq. ft. per month is reduced to Rs.80/- per sq. ft. per month. Save and except this modification, the order impugned is confirmed.

5] The respondents, shall accordingly be permitted to withdraw from out of the amounts deposited / secured by the petitioner mesne profits determined at the rate of Rs.80/- per sq. ft. per month along with proportionate interest thereon as awarded by the Small Causes Court. The balance amount shall be refunded to the petitioner.

6] Rule is made absolute to the aforesaid extent only. There shall be no order as to costs.

6. Admittedly, on 31 October, 2015 the respondent/original

KVM

8 - WP 12994 OF 2018.doc

plaintiff withdrew a sum of Rs.3,04,14,157/-.

7. Mr.Sanglikar, learned counsel for the petitioner submits

that the said withdrawal was done by the respondent without

informing the petitioner.

8. Thereafter, the petitioner/defendant deposited a further

sum of Rs.49,67,699/- in this Court. The Trial Court by its order

dated 25 October, 2016 has dismissed the petitioner's application

order below Ex.8 in MARJI Application No. 66 of 2016, therefore